Citation Nr: 0209033
Decision Date: 08/20/02 Archive Date: 11/06/02
DOCKET NO. 00-02 102 DATE AUG 20, 2002
SUPPLEMENTAL DECISION
On appeal from the Department of Veterans Affairs Regional Office
in Jackson, Mississippi
THE ISSUE
Entitlement to service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United
States
WITNESSES AT HEARING ON APPEAL
Appellant and his mother
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from March 1996 to June 1998.
This case was previously before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the Department
of Veterans Affairs (hereinafter VA) Regional Office in Jackson,
Mississippi, (hereinafter RO). The development requested by the
Board in its February 2001 remand has been accomplished to the
extent possible, and this case is now ready for appellate review.
FINDINGS OF FACT
1. All relevant available evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the RO.
2. The evidence weighs against a conclusion that the veteran has a
current disability that is the result of an acquired psychiatric
disorder incurred in or aggravated by service.
CONCLUSION OF LAW
A psychiatric disorder was not incurred in or aggravated by
service. 38 U.S.C.A. 1101, 1110, 1112, 1113, 1131, 1137, 5107(b)
(West 1991); 38 C.F.R. 3.102, 3.303, 3.307, 3.309 (2001).
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REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Applicability of the Veterans Claims Assistance Act
There has been a significant change in the law with the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA) codified at 38
U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp.
2001) and implementing regulations 66 Fed. Reg. 45, 620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. 3.102, 3.156(a),
3.159 and 3.316(a). The VCAA eliminates the concept of a well-
grounded claim, redefines the obligations of VA with respect to the
duty to assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12 Vet.
App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA
cannot assist in the development of a claim that is not well
grounded). The VCAA also includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The VCAA is applicable to all
claims filed on or after the date of enactment, November 9, 2000,
or filed before the date of enactment and not yet final as of that
date. VCAA; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
In this case, the Board finds that the VA's duties, as set out in
the VCAA, have been fulfilled.
First, VA has a duty to notify the appellant of any information and
evidence needed to substantiate and complete a claim. VCAA codified
as amended at 38 U.S.C.A. 5102 and 5103. The veteran was notified
of the evidence required for a grant of his claim by rating
decision dated in March 1999, statement of the case dated in April
1999, supplemental statements of the case dated in November 1999
and April 2002 and an April 2001 letter informing the veteran of
the VCAA. The Board concludes that the discussion therein
adequately informed the veteran of the information and evidence
needed to substantiate his claim, thereby meeting the notification
requirements of the VCAA. Thus, there is no outstanding duty to
inform the veteran that any additional information or evidence is
needed.
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Second, VA has a duty to assist the appellant in obtaining evidence
necessary to substantiate the claim. VCAA codified as amended at 38
U.S.C.A. 5103A. The necessary evidence, to include VA clinical
records dated through 2002 and reports from a recent VA psychiatric
examination as requested in the February 2001 remand, has been
obtained by the RO. The RO also attempted to obtain the purported
additional service medical records from a Division Mental Health
Service, but no additional service medical records are available.
In addition, the veteran's representative indicated in his July
2002 presentation to the Board that the RO had complied with the
provisions of the VCAA. The veteran has not identified any
additional pertinent records for submission by himself or that need
to be obtained by VA. See Quartuccio v. Principi, No. 01-997 (U.S.
Vet. App. June 19, 2002).
In the circumstances of this case,, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The
Board concludes that VA has satisfied its duties, as set out in the
VCAA, to notify and to assist the veteran in this case. Thus, the
Board finds that further development is not warranted.
II. Legal Criteria Analysis
In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence against
the claim. The appellant prevails in either event. However, if the
weight of the evidence is against the appellant's claim, the claim
must be denied. 38 U.S.C.A. 5107(b); 38 C.F.R. 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Service connection may be granted for a disability resulting from
injury or disease incurred in or aggravated by active service. 38
U.S.C.A. 1110; 38 C.F.R. 3.303.
There are some disabilities, including psychotic disorders, for
which service connection may be presumed if the disorder is
manifested to a degree of 10 percent
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or more within one year of separation from service. 38 U.S.C.A.
1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309.
"A determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993).
With the above criteria in mind, the relevant facts will be
summarized. "General Counseling Forms" dated in 1997 and 1998
during service demonstrated behavior by the veteran which was said
to interfere with his ability to perform his duties. These reports
showed the veteran to have difficulty with memory and
concentration. While the veteran's DD Form 214 listed the reason
for his service separation as "Physical condition, not a
disability," no specific reference to an acquired psychiatric
disability is demonstrated. by the service medical records, and the
separation examination did not reveal a psychiatric disorder. The
report of medical history compiled at that time did reference a
history, possibly provided by the veteran, of mild "depression" in
November 1997, and treatment in that month at the Division Mental
Health Service. As indicated above, however, no records of this
purported treatment are available.
After service, the veteran received VA outpatient treatment for
what was diagnosed as depression beginning in June 1998. The source
of the depression as listed on a VA clinical report dated in June
1998 was problems with his girlfriend. Reports from psychologic
testing in July 1998 showed the veteran stating that he had
difficulty socially in high school, and he made repeated reference
to problems relating to a woman he was interested in during high
school. Subthreshold dependent personality disorder was added to
the psychiatric diagnoses in July 1998. Records reflect continuing
outpatient treatment in a VA mental hygiene clinic through March
2002.
The veteran was afforded a VA psychiatric examination in January
1999, following which the examining psychiatrist indicated that the
veteran reported a history of
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depression but did not give a "clear history of psychotic
symptoms." The diagnosis was dysthymic disorder. This same
psychiatrist did not reach a diagnosis following an August 1999 VA
examination, and he concluded that the veteran appeared to be
malingering. Although antipsychotic medications had been
prescribed, this psychiatrist found that no evidence of a psychosis
was demonstrated at that time. In May 1999, the veteran was
admitted to a VA hospital for inpatient psychiatric treatment
following an argument with his brother. The diagnoses on Axis I
were adjustment disorder and delusional disorder by history. The
veteran again pointed to high school as the time when his
depression began.
The reports from the March 2002 VA examination requested by the
Board indicated the claims file was reviewed prior to this
examination. The history of difficulty the veteran had with school
work prior to service was discussed. The veteran stated that since
separation from service, he has been angry and depressed. He also
reported having trouble with concentration. Following the
examination, the diagnosis on Axis I was history of delusional
disorder, and it was indicated that the veteran endorsed symptoms
of paranoia. The diagnosis on Axis II was unspecified personality
disorder. It was also noted that the veteran had cognitive
difficulties :which resulted in his having trouble during school,
and that these same difficulties impaired his job performance while
he was in the service.
In the summary which followed the examination, the psychiatrist
stated that the veteran had symptoms of suspiciousness and "history
of depression" while in service, and that it was "possible that the
[veteran] has cognitive difficulties which were made worse by
depressive symptoms and some suspiciousness while in the service."
The psychiatrist also stated that "the [veteran's] psychotic
disorder seems related to behavioral difficulties which were noted
in the service, and that may date back to his years before joining
the service." The psychiatrist noted that it was difficult to
evaluate the veteran because he was nonresponsive to questioning.
Applying the pertinent legal criteria to the facts summarized
above, the Board finds that the opinion following the March 2002 VA
psychiatric examination is too speculative to establish a "nexus"
between a current psychiatric disability and a
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psychiatric disorder acquired during service. See Obert v. Brown,
5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609,
610-11 (1992). The veteran himself has noted that he had difficulty
functioning in school during service due to an inability to focus,
remember things, or concentrate, and the counseling reports during
service reflected similar difficulties. He also described
depression during high school. The March 2002 opinion clearly noted
this pre-service history. As to whether service-connection is
warranted on the basis of "aggravation," a grant of service
connection on this basis requires a finding that the underlying
condition associated with a psychiatric disorder, as contrasted to
symptoms of the disorder, is worsened. Jensen v. Brown, 4 Vet. App.
304, 306-07 (1993). Such a finding is not indicated by the
purported in-service worsening of "cognitive difficulties"
referenced in the March 2002 opinion. More specifically, the
cognitive difficulties discussed in this opinion are indicative of
a developmental disorder, which is not a "disease" for which
service connection can be granted, and as a "matter of law" is not
a compensable disability. 38 C.F.R. 3.303(c); Beno v. Principi, 3
Vet. App. 439, 441 (1992).
The Board also notes that the veteran was variously found to have
been malingering and a poor historian at his VA psychiatric
examinations. Therefore, to the extent that the March 2002 opinion
is based on the veteran's descriptions of alleged treatment during
service, the probative value of this opinion must be reduced. See
LeShore v. Brown, 8 Vet. App. 406, 409 (1995); Reonal v. Brown, 5
Vet. App. 458, 461 (1993). This is particularly true given the fact
that while the veteran's behavioral problems during service are
documented, the service medical records do not reflect an
identifiable acquired, as opposed to a developmental, disorder.
While there is some reference to psychotic symptoms, the VA
examinations conducted in 1999 did not demonstrate the criteria for
a diagnosis of a psychotic disorder on Axis I, and there is
otherwise insufficient evidence to conclude that a psychotic
disorder warranting a 10 percent rating was shown within one year
of service. Thus, the Board concludes that service connection
cannot be granted for a psychotic disorder on a presumptive basis
under the provisions of 38 U.S.C.A. 1101, 1112, 1113, 1137; 38
C.F.R. 3.307, 3.309. Finally, while the Board has
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considered the assertions presented by and on behalf of the
veteran, including at the June 1999 hearing and in a statement
received in July 2002, such lay statements asserting the belief
that disabilities are service connected are not probative,
particularly in light of the fact that the service medical records
do not reflect an identifiable acquired psychiatric disorder.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In short, while
the record does contain some "positive" evidence, the probative
weight of this evidence is overcome by that of the "negative." As
such, the claim must be denied. Gilbert, 1 Vet. App. at 49.
ORDER
Entitlement to service connection for a psychiatric disorder is
denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you
what steps you can take if you disagree with our decision. We are
in the process of updating the form to reflect changes in the law
effective on December 27, 2001. See the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976
(2001). In the meanwhile, please note these important corrections
to the advice in the form:
These changes apply to the section entitled "Appeal to the United
States Court of Appeals for Veterans Claims." (1) A "Notice of
Disagreement filed on or after November 18, 1988" is no longer
required to appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General Counsel.
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In the section entitled "Representation before VA," filing a
"Notice of Disagreement with respect to the claim on or after
November 18, 1988" is no longer a condition for an attorney-at-law
or a VA accredited agent to charge you a fee for representing you.
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